Cader v. Mohamed.
Present: Soertsz and Hearne JJ.
CADER et al. v. MOHAMED et al.
182—D. C. Galle, 35,208.
Mortgage sale—Application to set aside sale—Discretion of Court—How itshould be exercised ?
Where a sale in execution of a mortgage decree is carried out by anauctioneer subject to conditions approved by Court and subject toconfirmation by Court,—
Held (in an application to set aside the sale) that the Court in exercisingthe discretion which it has reserved to itself is not limited to the grounds.upon- which a sale held by a Fiscal is set aside.
, SOERTSZ J.—Coder v. Mohanted.
^^PPEAL from an order made by the District Judge of Galle.
Hayley, K.C. (with "him Tiruchelvam), for purchaser, appellant.
Perera, K.C. (with him Haniffa and Chitty), for judgment-debtors,respondents.
Cur. adv. vult.
February 9, 1938. Soertsz J.—
This is an appeal preferred by the purchaser of a land and building,against an order of the District Judge of Galle, setting aside the sale.The sale took place in execution of a mortgage decree and was carried outnot by the Fiscal, but by an auctioneer appointed by the Court, on certainconditions approved by the Court on May 13, 1937. One of the conditionswas that the sale should “ be subject to confirmation by Court and thepurchaser will have to obtain transfer at his own expense ”.
The judgment-debtor sought to have the sale set aside on the groundthat the auctioneer after.he had sold the first three lands “said he wouldnot sell lot 4, with the result that most of the bidders left the place, beingmade to understand that rjo further sale would- take place ”, and thatthereafter, the auctioneer in breach of his assurance put up this lot forsale, and sold it to the appellant, who was the highest bidder amongthose present.
The learned Judge has found against the defendants-respondents onthe question whether the auctioneer intimated to those present that thesale of lot No. 4 would not take place. He is satisfied that no suchannouncement was made, and I agree with that finding.
It is-admitted, however, that there was a delay in holding the sale ofthe fourth lot, due to the fact that the defendants-respondents, thejudgment-debtors, had asked for time to pay the balance and the Proctorof the^judgment-creditor had written to the second plaintiff (judgment-creditor) to inquire whether he would consent to the sale of this lot beingstayed.
The learned Judge has taken the view that this adjournment of the salemisled some of those present to bid for this lot, into thinking that the salewould not be held on that day. Two such persons Thaha. and Wijeyratnahave given evidence. The former says he had come prepared to bid upto Rs. 10,000- for this lot, but that he left the place because the auctioneerannounced that the sale had been stayed. The latter says that he wasprepared to bid up to Rs. 8,000, _and that he left the land in similarcircumstances. The Judge holds that the auctioneer made no suchannouncement, but he appears to accept the statement of Thaha andWijeyratna that they were ready to bid up to 10,000 and Rs. 8,000respectively. Counsel for the appellant submitted that the Judgehaving rejected their evidence on one point, should not have accepted iton the other. But, it is clear that the Judge in not accepting theirevidence to the effect that the auctioneer announced that the sale wouldnot be held, took the view that they had misunderstood the auctioneer.That is quite probable. It is in that view of the facts that the Judge hasset aside the sale. In his order, however, he says that he is setting asidethe gale on the ground that “ the absence of a definite announcement asto the cause of the delay in carrying out the sale of the 4th named land ”
Gunaicardene v. Jayawardene.
amounted to a material irregularity in the conducting of the sale. It is,in my opinion, unnecessary to consider whether in sales held by the Fiscal,this delay would have afforded sufficient justification for saying that thesale was vitiated by material irregularity, for it appears to me that whensales are held by an auctioneer acting on orders of the Court, and sellinga land on conditions of sale approved by the Court, and subject to theconfirmation of the sale by Court, the question that really arises is whetherin setting aside the sale, or in refusing to confirm it, the Judge is exercisingproperly, and in' a judicial manner, a discretion which he has expresslyreserved to himself. When a Judge is considering how he is to exercisethat discretion, I do not think he is limited to the grounds upon whichsales held by the Fiscal are set aside. In this instance in the view takenby the Judge of what actually happened on the occasion of this sale, it isimpossible for us to say that he has exercised his discretion in a wrongor improper manner and, therefore, we ought not to interfere withhis order.
I think, however, that the judgment-debtors are responsible for all themisunderstanding that arose. At the eleventh hour, they asked for time,and sought the intervention of the judgment-creditor’s Proctor andcaused the delay in the sale. They should, therefore, pay to the purchasersall the expenditure in which they have been involved for no fault of theirs.They must pay him all the expenses incurred by him under conditions ofsale No. S and 6, of the cost of the transfer if the auctioneer has alreadyexecuted a transfer, and the costs of the inquiry in the Court below.Each party will bear his costs of appeal subject to these variations, theappeal is dismissed.
Hearne J.—I agree.
CADER et al. v. MOHAMED et al